Big court battle for potential deportee

OAKLAND

Shoshana Walter, Bay Citizen

Updated 9:41 am, Monday, August 13, 2012

Photo: Haraz N. Ghanbari, AP

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Last year, Immigration and Customs Enforcement (ICE) Director John Morton asked prosecutors to consider several factors before deciding whether to proceed with a deportation. But since then, prosecutors have opted to close just 1.9 percent of the almost 300,000 cases in the immigration court system.

Last year, Immigration and Customs Enforcement (ICE) Director John Morton asked prosecutors to consider several factors before deciding whether to proceed with a deportation. But since then, prosecutors have

Enrique Candia lives a quiet life in Oakland. When he's not working, he takes care of his ailing wife and his three grandchildren and makes sure his son is on track to finish college.

Now, although he has no criminal record, the 56-year-old is facing a court battle that could take him away from his family for years.

In June 2010, federal agents arrested Candia for working in the United States without proper authorization. A Mexican national who has lived in this country for almost 20 years, Candia was sent to an Immigrations and Customs Enforcement detention center.

"It's the first time it ever happened to me," he said. "I felt they were really going to deport me."

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His attorney thought Candia would not face prosecution. Last year, ICE Director John Morton asked prosecutors to consider several factors before deciding whether to proceed with a deportation, including how long the person had been in the United States, family ties, educational pursuits, community contributions and criminal history.

Morton's goal was to reduce the strain on the immigration court system and place more of a focus on higher-priority criminal cases.

Few cases closed

But since then, prosecutors have opted to close just 1.9 percent of the almost 300,000 cases in the immigration court system, according to the latest data released last week by the Transactional Records Access Clearinghouse at Syracuse University in New York. In San Francisco, prosecutors closed a mere 2.9 percent of cases.

Prosecutors have closed 4,360 cases and reviewed 288,000 since Morton issued his directive last year, according to ICE. The closed cases include 3,302 people with "a long-term presence" in the country and a close family member who is a U.S. citizen.

"Obviously, ICE disagrees with those who are characterizing this ongoing effort as a failure," said agency spokeswoman Virginia Kice. "The ongoing case-by-case review is helping to alleviate backlogged immigration courts and enabling ICE to more quickly remove those individuals who pose the greatest threat to public safety."

Lawyers key

After an initial review, prosecutors declined to drop Candia's case.

His case appears to highlight a problem that immigrant rights advocates say has beset ICE's prosecutorial discretion program. Unlike the criminal court system, defendants in the immigration courts are not entitled to legal representation. Advocates say that without adequate representation, potential deportees often receive only cursory reviews.

The latest data show that an overwhelming majority of defendants whose cases are closed through prosecutorial discretion had lawyers.

"The government says it's reviewing all the cases, but oftentimes, what they're reviewing is just the file they have, which is why the person got put into proceedings in the first place," Shull-Gonzalez said. "Their ties to the community, their children - that's just not in a government file."

Candia said he didn't have a lawyer until his second court hearing, after prosecutors had already denied closing his case. That attorney, provided pro bono by the Bar Association of San Francisco, listened to Candia's story and referred him to Shull-Gonzalez, who requested another prosecutorial review.

Making a case

Candia then began collecting materials to send to prosecutors, such as tax records and information about his family, including his brother-in-law, a U.S. citizen who has petitioned for the family to remain in the United States.

Candia said he hopes to learn at his next hearing this month that his case is being dropped. In the meantime, he remains in Oakland, where he takes care of his wife and grandchildren. His 22-year-old son also lives at home while going to school.

The battle to stay in the United States has taken a toll on him and his family, he said.